I am currently three months into a 12-month maternity leave period and the company I work for is going through a restructure. I have been advised what figure I would be offered for voluntary redundancy and I have a meeting with HR about the new structures. I had a conversation with HR today and it was hinted that I’d be better off taking voluntary redundancy rather than waiting for compulsory redundancy. In addition to this in a previous maternity leave I requested flexible working. My permanent full-time job was given to my maternity cover and a new role was created for me which I knew was funded by a limited pot. I was only told of these changes a week before I went back to work so felt I couldn’t argue, although I did express my dissatisfaction. I can’t help but feel if I hadn’t requested flexible working, I would still be in my original position and wouldn’t be in the situation I’m in now.
I am trying to work out what will give me the best deal financially and have so many questions, but I think the main ones I would be grateful for answers to are:
1. If I accept voluntary redundancy what will happen to my maternity pay and holidays I would have accrued over the rest of my maternity leave?
2. Are there any specific notice periods for voluntary redundancy?
3. Before I left on maternity leave HR advised me that I couldn’t be made compulsorily redundant whilst I was on maternity leave, but I could on the day I returned – is this correct? My company’s maternity policy states that ‘All terms and conditions of employment except remuneration will be protected during maternity leave.’
4. What are my rights with regard to consultation? I have not been consulted on about anything yet.
I expect that there is greater background and detail than that which you have included in your enquiry and I have therefore sought to answer the listed questions as best as I can, based on the information you have provided. That said, before making an informed decision on whether to take voluntary redundancy, I would suggest that you seek legal advice on the full facts.
1. You are entitled to all accrued but outstanding holiday pay up to your last day of employment with the company, which is usually described as the ‘Termination Date’. It may be that you can agree with your employer that they pay you a sum equivalent to any holidays you would have accrued through your notice period too, but they do not have to do so.
In respect of maternity pay, any right to enhanced contractual maternity pay will cease as of the Termination Date (again, unless an alternative agreement is reached in respect of any further payments), but you should still be paid in respect of any outstanding Statutory Maternity Pay, depending on your eligibility for the same, if your redundancy takes effect during the SMP period. If you do not qualify for SMP you may be able to claim Maternity Allowance. You can agree with your employer that this will be paid in one lump sum payment on termination of your employment.
2. There are no specific notice periods for voluntary redundancy.
In most circumstances, statutory notice is the minimum legal notice that should be given which is one week if the employee has been employed by the employer continuously for one month or more but for less than two years, and then two weeks for two continuous years, with one additional week’s notice for each further complete year, up to a maximum of 12 weeks.
However, you also need to check your contract of employment as some contractual notice periods are more generous than statutory notice ie one month for 1/2 years’ complete service.
It may be that if you take voluntary redundancy you are entitled to an enhanced redundancy payment, but this is often set out separately to any notice pay.
3. This is not correct. An employee on maternity leave whose role is affected by a redundancy exercise has enhanced protection, for example, they should be offered any suitable alternative positions before any other affected employees. However, that is not to say they are untouchable. An employer can still make them redundant so long as they follow the correct processes and procedures. If they don’t then the employee would not only have a claim for unfair dismissal, but also a potential discrimination claim too.
If your employer delays your redundancy until after the end of your maternity leave, which would mean that you were not able to apply for any suitable alternative positions or in a bid to avoid giving you alternative work, you may have a claim for unfair dismissal.
4. Consultation is one, if not the, most important obligations on an employer in a redundancy situation, especially so where an employee is on maternity leave or long-term sick. They must consult with all employees affected, including anyone on maternity leave. Failure to consult a woman on maternity leave about a possible redundancy is likely to be unlawful discrimination.